federal regulation.txt

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  1. Entitlement Program
    Entitles a person to a government benefit if the person meets certain qualifications
  2. APA Definition of "Agency"
    • Each Authority of the Gov't of the US, whether or not it is within or subject to review by another agency
    • NOT - states, state authorities, Congress, D.C., territories
  3. Traditional Arguments for agency governance
    • a. Continuity
    • b. Flexibility
    • c. Specialization and Expertise
    • d. Essential Values
    • e. Emergencies f. Volume
    • g. Ongoing Supervision
    • h. Economic Justification
    • i. Public Safety
    • j. Dissemination of Information
  4. Traditional arguments disfavoring agency governance
    • a. Incompetence
    • b. Favoritism
    • c. Capture
    • d. Loss of Market
    • e. Compromised Privacy
  5. Independent Regulatory Agencies (and 4 characteristics)
    • Insulated from direct Presidential authority
    • Four typical characteristics:
    • (1) headed by multi-member groups
    • (2) quotas on members' party memberships
    • (3) members have fixed, staggered terms
    • (4) members can only be removed for "cause" (not at the "pleasure of the president")
  6. Typical Agency actions
    • Regulating private conduct
    • Disbursing entitlements
    • Managing federal property
  7. 3 agency powers contrary to separation of powers ideal
    • Quasi-legislative power to adopt reg's that control indiv.'s conduct
    • Executive power to enforce laws under purview
    • Quasi-judicial power to apply rules and reg's in individual cases
    • Bonus: independent agencies exercise these outside 'control' of branches of gov't
    • "4th Branch of Gov't"
  8. Const provisions used by USSC to justify modern admin process
    • Art. 1 sec. 8 cl. 18 - makes all laws "necessary and proper" for effective governance
    • Checks and Balances- precludes complete separation
  9. Functional Approach to Separation-of-Powers cases
    • Const. Designed to produce a workable gov't
    • Loving v US - "practice will integrate the dispersed powers into a workable gov't"
  10. Formalistic Approach to Separation-of-powers cases
    Powers between branches are clean, governed by clear cut rules
  11. Delegation Doctrine (and 2 tests)
    • Const limits on powers Congress can delegate
    • Quasi-legislative & Quasi-judicial tests
  12. Delegation doctrine - quasi-legislative inquiry
    • Congress can delagate quasi-leg authority if agency (or official) is given an "intelligible principle" to follow
    • J.W. Hampton, Jr. & Co. V. US- Created modern test
    • Hampton: Cong can grant authority to pomulgate reg's if given overarching policy within which to act
    • Hot Oil Case (limit): President couldn't stop inter-state shipments of oil produced in violation of state law b/c no intelligible principle (i.e. definition of circumstances and conditions) existed in the fed. Statute granting authority
  13. Delegation doctrine: Congressional retention of power
    • 4 USSC invalidations
    • 1- Congress. Appointing admin officials
    • 2- appoining members of Cong to serve on admin bodies
    • 3- Cong controls removal of admin officials
    • 4- exercising "legis veto" over admin action
  14. When can congress appoint officials?
    • To help exercise its legislative powers
    • Ex. Gather information regarding pomulgation of new law - not "officers of the US"
  15. When can members of Cong serve in admin bodies?
    • Ex. Congressional overisght of Library of Congress - primary duty of LoC is to inform Cong
    • Metro. Wash. Airport Auth. V. CAAN - board composed exclusively of members of Cong
    • 1- Cong may not vest its members with judicial or exec powers
    • 2- Congressional exercise of leg powers must pas both houses and be presented to Pres. For approval/veto
  16. When can Congress remove officers of the state
    • Art II Sec 4 - Impeachment (treason, bribery, high crimes and misdemeanor)
    • Bowsher v Synar - USSC struck congressional delegation of authority to cut budget to comptroller general b/c/ comp gen is removable by Congress (informs congress)
  17. When can Congress pomulgate a legislative veto?
    • Never
    • INS v Chadha - Att Gen had to submit decision to suspend deportation to Cong.
    • Either house could veto decision.
    • Decision and power to do so was invalidated
    • Chadha invalidated 200 admin laws
  18. Typical Congressional oversight mechanisms
    • 1) an appropriations committee
    • 2) Substantive committee - oversees agency's work
    • 3) Government operations committee- concerned with agency's efficiency and coordination w/ other agencies
  19. Report and Wait law
    • 5 USC 8801-8
    • Agency must report to Cong what rules it attempts to adopt
    • Cong must pass a joint resolution within 60 days dissaproving, subject to Pres veto
  20. Art II Vesting Clause
    • "The executive Power shall be vested in a President of the USA"
    • Not not say "all", unlike Vesting Clause of Art I ("all legislative powers")
  21. Take Care Clause
    • Art II Sec 3 - President "shall take Care that the laws be faithfully executed."
    • Question arises about whether President must follow rules laid by independent agencies
  22. Three types of officers
    • Principal- heads of depts and other hgh officials
    • Inferior- not a head of dept, but exercises significant authority pursuant to US law
    • Employee- functionary
  23. Ways Congress can shield agency from Presidential Controll
    • Terms of service,
    • staggered terms,
    • party balancing,
    • requirements for nomination (ex. Expertise in a sector),
    • OMB by-pass rules,
    • adjudicatory authority (impartial decision making process less subjective to Presidential influence),
    • Appropriation authority that give de facto independence (donations, fees, etc.)
  24. DIfference (dichotomy) between rule making and adjudication
    • - rule making- regulates future conduct (legislative)   
    • - Adjudication- concerned with past and present liabilities - determining benefits - adversarial - acting like a court
  25. Essentials of Due Process (3 factors Mathews v Elridge- SS disability benefits case)
    • - Private interest that will be affected
    • - Risk of errouneous deprivation
    • - Cost-benefit (Agency interest in current administrative procedure vs. Alternative measures)
    • Mathews Balancing Test- Must involve notice/impartial decision maker/opportunity to be heard
  26. APA definition of Adjudication
    The agency process for issuing an order
  27. APA definition of order
    Final disposition of an agency in a matter other than rulemaking but including licensing
  28. APA definition of Licensing
    Any agency permit, certificate, approval, registration, charter, exemption, or other form of permission
  29. Formal Adjudication defined
    • APA Section 556 and 557
    • Fairly formal, trial type adjudications that bear substantial similarity to tial courts
  30. Informal Adjudication
    • Often without lawyers
    • Often an extension of bureaucratic decision
  31. APA Section 554 Adjudications
    • Required by statute to be:
    • 1)on the record
    • 2)after opportunity for an agency hearing
    • ***Look to statute for language requiring 1&2
  32. Chevron v. NRDC (US 1984)
    • When a statute is ambiguous, courts should defer to a reasonable interpretation of the statute by the agency responsible for administering it
    • Does not apply to interpretations of statutes that apply to multiple agencies
  33. Who has the burden of proof in a challenge to an agency action?
    • The person challenging the agency action
    • Preponderance of the evidence
    • Not necessarily person bringing action
  34. Factors used to suggest a formal adjudication is required when not clearly expressed in statute
    • Uses either hearing or on the record
    • Statute provides for judicial review
    • Legislative history
    • If issues of fact, not science, ar at stake
  35. Marathon Oil test
    An adjudication held under a statute ambiguous to the required level of formality, and resolving more issues than simple facts, may require a formal adjudication
  36. Notice requirement for APA adjudication
    • 1) notice of time, place, nature of hearing
    • 2)legal authority and jurisdiction under which hearing is to be held
    • 3)matters of fact and law asserted
    • 4)(sometimes) defendant must give notice of controverted issues of fact and law
  37. APA Rules of evidence
    • "Any oral or documentary evidence"
    • Agencies usually exclude irrelevant, immaterial, repetitive evidence
    • No order in a formal adjudication may be issued that is not supported by "reliable, probative, and substantial evidence"
  38. Residuum Rule
    While heresay is admissible, the decision of an administrative adjudication could not rely solely on hearsay evidence
  39. Insuring impartiality of ALJs
    • Agencies have little control over who is hired
    • Exempt from annual performance ratings/punishment from agencies
    • Right to formal adjudicative proceeding before being fired
  40. APA and Ex Parte Communications
    • Defined as oral or written communication not on the public record with respect to which reasoable prior notice to all parties is not given
    • Prohibits ex parte communications relevant to proceedings between any interested party outside the agnecy and an individual within the agency who is reasonably expected to be invlved in the decision making process
  41. Two parts to Separation of Functions provision
    • 1)ALJ cannot talk about a fact in issue unless on notice and if all parties can participate
    • 2)Investigators/prosecutors cannot be in a position of authority over ALJs (exlucding body members)
  42. Procedures applicable to all proceedings
    • Person must provide their own counsel
    • Interested parties may "appear" as well
    • Must conclude matters within reasonable time
    • Brief statement of grounds for denial
  43. Licensing and definition
    • Agency process for granting, dying, or conditioning a license
    • License- an agency permit, certificate, registration, membership, or other form of permission 
  44. Three APA provisions for licensing (section 558)
    • Agency will begin and complete within reasonable time
    • Agency must give notice of behavior that would cause denial/revocation and gives applicant opportunity to demonstrate compliance
    • Timely application for renewal maintains good standing until official denial
  45. Goldberg v Kelly (US 1970)
    • NY terminates woman's welfare for living with a male friend.
    • NY had 2-tiered admin process - 1)informal, then if welfare is revoked, 2) de novo formal review
    • CRT: Gov't benefit is a property right. Denial by informal proceeding lacked due process
  46. Policy/procedures and creation of rights
    • Written policies, confirmation of mutual understanding
    • look to establish existence of legal right
    • State Law governs what is property
  47. Stigma-plus Test
    • Paul v Davis (police distribute anti-shoplifting flier with Davis' picture)
    • Reputation alone is not property
    • No cause of action without a tangible effect
    • Usually arises when Gov't publicizes defamatory info
  48. Mathews v Eldridge (US 1976)
    • Determinations of whether agency process affecting property right meets due process requirement
    • Informal process of submitted written material results in revocation of benefits; only after is formal process initiated to reinstate benefits
    • Crt: 3-part consideration test
    • 1) private interest affected
    • 2) risk of erroneous deprivation and options for alternative procedures
    • 3)Gov't interest in using procedure (as opposed to alternatives/more)
    • **Shift from judicial style procedures, as long as affected person has adequate opportunity to be heard
  49. Due process requirements (common law created)
    • Impartial judges
    • Prohibition on certain ex parte communications (decisions must be on the record)
  50. Standard for showing bias (Mathews case)
    • The person's mind is irrevocably closed
    • Whether a disinterested person could hardly fail to conclude that the decision maker had in some measure already decided the case
    • Must be shown through intrinsic evidence
  51. Ex parte communications and non-APA adjudications
    • Communications with "new and substantial" information can deprive person of due process by denying hi the opportunity to respond to evidence against him
    • Standard: Whether a reasonable person would conclude the ex parte communication likely caused prejudice
  52. APA definition of "rule"
    • Agency statement
    • Of specific or general applicability and future effect
    • Prescribing law/policy/organization of an agency
    • Describing the organization or standards by which agency will govern applications, facilities, prices, services, licenses, or practices thereof
  53. Legislative rules
    • Rules adopted by agency that are legally binding on persons
    • Can subject person to civil or criminal liability
    • Statute authorizes agency to makes such rules
  54. Nonlegislative rules
    • Expressions of agency view of the meaning of a statute or regulation or publiceze an agency's policy on a matter
    • No requirement of statutory authority
  55. Three types of APA rulemaking
    • Formal
    • Notice-and-Comment (publication rules)
    • Hybrid
  56. Formal rulemaking
    • Requries a formal adjudication like procedure
    • Governed by APA sections 556/557
  57. Requirements of Notice-and-Comment Rulemaking
    • Agency gives notice of rule to public
    • Agency accepts comments from public
    • After considering comments, agency provides explanation and basis for adopting final rule
    • FInal rule must be published in Federal Register
  58. Hybrid Rulemaking requirements
    Mix APA notice-and comment requirements with other procedural requirements
  59. Additional procedure trigger in EO 12866
    If rule will have impact greater than $100 million on the economy
  60. Confines of Military/For Affairs rulemaking exemption
    • Desire not to impede discreet nature of military or foreign affairs
    • Construed strictly- only applied as needed
    • Must be evidence that rulemaking procedure would provoke undesireable international consequences
  61. Confines of rulemaking exemption involving agency management/property/loans/grants/benefits/Ks
    • Rules that don't involve regulating private behavior
    • Exempts rules that involve governing agencies themselves or voluntary transactions with agencies
  62. Exemption from N&C rulemaking requirement- Interpretive rules
    • Announcement of what agency believes a rule means
    • Substantial Impact Test
    • LIgally Binding/Force of Law test
  63. Legally binding/Force of law test
    • If in absense of rule, agency would not be able to take action
    • Does the rule interpret a legal standard or make policy (use of intepretive rules- intepretive)(Specifying how the rule serves an intended purpose- making policy)
    • Is the interpretive rule consistent with the legislative rule it is intepreting?
    • Whether the intepretive rule is inconsistent with a prior, longstanding interpretive rule
    • IF the agency states a rule is intepretive when it is being issued
    • Whether the person signing the document has the authority to bind the agency or make law
  64. General Statements of Policy
    • Not legally binding and not subject to N&C
    • Two motivations: provide guidance for employees or announce intentions to public/regulated entities
    • Can influence future cases, but cannot decide them
  65. COmmunity Nutrition Institute v Young (DC Cir 1987)
    • FDA issued general policy statement saying it would not take enforcement action against food contamination unless "action levels" were exceeded
    • No indication that the rule was temporary, could change, or would not decide an issue
    • Crt: Effectively created a legally binding norm
  66. Chamber of Comm v US DoL
    • Crt struck down statemnt of policy attempting to coerce regulated agencies into actions the agency could not mandate through legislative rules.
    • OSHA issues statement of policy saying it would not inspect workplaces as often if employer voluntarily complied with workplace safety plan.
    • The significant reduction in costs for employers if they followed the intepretive policy meant it was akin to forcing employers to follow plan.
  67. APA N&C exemption - Procedural rules
    • Legally binding rues that do not govern the primary conduct of regulated public entities
    • 'Submit duplicate copies w/ application' (procedural rule) vs. Substantive criteria to show to receive benefit (not a procedural rule)
    • Agency manuals and directions
    • Substantive Impacts test applies
  68. APA N&C exemption- Procedural rules Substantive Impact Test
    Asks whether the alleged procedural rule has a substantial impact on a person's conduct outside the proceeding itself
  69. APA N&C exemption- Procedural rules Encoding a Substantive Value Judgment test
    • DC Circuit ONLY
    • American Hospital Assn. V. Bowen
    • Whether the agency is putting a stamp of approval or dissaproval on a given tpe of behavior
  70. APA N&C exemption- Agency finds unnecessary/impracticable/contrary to public interest
    • Substantive and procedural combines tests
    • Substantive- Agency must have good cause not to publish rule (unnecessary, impracticable, public interest)
    • Procedural- APA requires the reason be included in the rule when it is adopted
    • Unnecessary- purely ministerial, typocgraphical fixes
  71. 4-step procedure for Notice and Comment Rulemaking
    • notice
    • comment
    • Adopt final rule
    • Pass the "logical outgrowth" test
  72. N&C Rulemaking procedure- Notice requirements
    • Section 553(b)
    • Statement of time, place, nature of public rulemaking proceedings
    • Reference to legal authority under which the rule is proposed
    • Either the terms or substance of the proposed rule or a description of the issues involved
  73. N&C Rulemaking procedure- Comment requirement
    • Agencies must provide opportunity for written comment (oral not required)
    • Time provided must be adequate
  74. N&C Rulemaking procedure- Final Rule
    • Standard practice is to respond to the comments received, though not required
    • Must include basis and purpose for rule
    • Substantive rules must be published
    • Exceptions- 1)rules granting excemptions, 2)interpretive rules/policy statements, 3)for good cause and published with the rules
  75. N&C Rulemaking procedure- Logical Outgrowth Test
    • Test to determine whether final rule is within scop of proposed rule
    • As long final rule is a logical outgrowth of the proposed rule, furthe N&C is not necessary
    • Should the party have anticipated the rule could apply to them?
  76. Non-N&C Ruemaking procedures
    • APA does not provide for procedures
    • Required to be published in Federal Register
  77. Vermont Yankee Nuclear Power Corp v. Nat. Resource Defense Counsel (US 1978)
    • Deference should be given to agency discretion over what procedures should be used for non-APA adjudications
    • Courts should not fill gap left by APA
    • NRC used a trial-type hearing to determine facts concerning the potential environmental effects from nuclear waste generated by civilian nuclear power
  78. Constitutionally/jurisprudentially created procedures for rulemaking
    • Due Process Clause- for rules governing public
    • Ex Parte Communications (HBO v. FCC)- after publication of proposed rule during N&C, any ex part communication must be put on public record and interested persons must be allowed to comment
    • No bias allowed- "clear and convincing"
    • Undue influence- (rare)(Sierra Club v. Costle)
  79. Sierra Club v. Costle
    • Senate Majority Leader communicated strong views concerning EPA adopting a rule less burdensome on coal interests.
    • EPA adopts rule consistent with his rules
    • CRT: two part test for undue influence
    • 1) content of the pressure irrelevant/extraneous to issue being considered
    • 2)Agency is affected by pressure
  80. Hybrid Rulemaking
    • all rule making conducted under procedures more extensive than APA/const. requirements
    • All hybrid rule making must come from either admin. or statutory requirements (Vermont Yankee)
  81. Four major requirements of EO 12866
    • to engage in a regulatory planning process
    • to conduct cost/benefit analyses on major rules
    • to submit proposed and final rules to the Office of Information and Regulator Affairs (OMB) prior to publication
    • Major rules must conduct a regulatory analysis
  82. Regulatory Analysis required by EO 12866
    • Agency proposing major regulation (affect on economy > $100 mil. or material affect on particular industry/jobs/competition/environment/health/pub sector/local-state gov's) must:
    • conduct an cost benefit analysis and compare it to alternative regulation options
  83. Court jurisdictional basis for reviewing agency decisions
    28 USC 1331- Federal question statute
  84. Constitutional requirement for standing in judicial reviewed agency decisions
    • Lujan v. Defenders of Wildlife (3 elements)
    • Injury in fact (1. concrete and particularized and 2. actual or imminent, not hypo)
    • Causal connection between injury and conduct complained of
    • Likely the injury can be redressed by a favorable decision
  85. Types of injury for standing
    • Recreational, aesthetic, or environmental injury
    • Risk as injury
    • Fear as injury
    • Procedural injury
    • Informational
  86. Sierra Club v Morton (1972)
    • person's interest in subject, no matter how intense, is insufficient to establish standing
    • If the person uses an area for recreational purposes and the gov't action harms the area, they have standing
  87. Standing based on risk of injury
    • Generally, a substantial increased risk may be sufficiently concrete-
    • "substantial probability of injury"
    • DC Crt only: Public Citizen v National highway Traffic Safety Admin.- "substantial probability of injury" showing 1. substantially increased risk of harm, and 2. a substantial probability of being harmed given increased risk)
  88. Fear of Injury as standing
    • Friends of the Earth v Laidlaw Environmental Services (US 2000)
    • Laidlaw discharged mercury into a river in excess of permitted levels.
    • P said, Crt agreed, they feared using the river as usual because of increased risk of illness
  89. Procedural Injury as basis for standing
    • Procedural violation alone does not satisfy standing (Lujan v Defenders of Wildlife)
    • Failure to follow procedure in combination with risk of injury would likely succeed
    • Summers v Earth Island Institute- failure to post sign before Dept of Interior cut down trees did not create standing on its own, but if group's members used forest it would.
  90. Basis for judicial review of agency action
    • APA Section 702
    • for persons suffering legal wrong b/c of agency action or adversely affected or aggrieved by agency action within the meaning of a relevant statute
  91. Two exceptions to judicial review under APA
    • Statutory preclusion
    • Committed to agency discretion by law
  92. Statutory preclusion exception to judicial review under APA
    • Presumption of judicial review (Abbot Labs case)
    • Without clear statute, Gov't must show clear and convincing evidence of intent to preclude judicial review
    • Block v Community Nutrition Institute - intent to preclude judicial review can be found in structure of statutes
    • No presumption of pre-enforcement judicial review (where regulated party seeks injunction) (Thunder Basin Coal Co v. Reich - Co didn't like regs saying union rep can accompany mine inspectors)
  93. Timing/limits to judicial review
    • Final Agency Action
    • Exhaustion of administrative remedies
    • Ripeness
    • Primary jurisdiction
  94. Final agency action explained
    • when an agency has completed an action (not a preliminary decision)
    • Must have direct legal consequences
    • Rochester Telephone Corp. v US 2 part test for determining whether agency action is final
    • 1) decision must mark the 'consummation' of agency decision process; and 2)one in which a right or obligation is determined
    • Letter from Administrator can be a final determination, if intended to apply generally
    • Failure of agency to act by statutory deadline can be considered final agency action
  95. Exhaustion of Administrative Remedies explained
    Person must exhaust admin remedies under 2 circumstances: 1) when expressly required by statute, and 2) when agency rule requires it and provides for an automatic stay pending appeal
  96. Exhaustion of Admin Remedies: Common law vs. APA
    • Darby v. Cisneros (US 1993) - Statutory exhaustion doctrine supersedes common-law doctrine for suits brought under APA
    • Darby: HUD ALJ found person violated eligibility requirements for benefit. Individual appealed directly to district court (not to Sectretary, which had discretion to review case or not)
  97. Three steps of determining whether necessity for admin exhaustion exists
    • 1) APA?
    • 2) Statute requires it?
    • 3) Common law?
  98. Three exceptions to Admin Remedies Exhaustion rule (McCarthy v Madigan US 92')
    • If subsequent judicial review to provide relief would be undermined (ex. when agency action is not stayed & person will be irreparably harmed)
    • Admin remedy can not provide adequate relief (ex. person needs monetary award by admin cannot give it)
    • Alleged bias or prejudice
  99. Administrative Issue Exhaustion doctrine
    • A person must have first raised an issue before the agency before obtaining judicial review of that issue.
    • Sims v Apfel
  100. Ripeness doctrine
    • Abbot Laboratories v Gardner
    • FDA issued rule requiring generic drug names be used alongside trade names
    • Two part test:
    • 1) fitness of the issue for legal decision (is it more than just a legal argument/do facts show harm?)
    • 2) Hardship of the parties from withholding judicial review
  101. Compliance Orders and ripeness doctrine (3 considerations)
    • Do the orders merely require person to comply with law, or do they add addition burdens?
    • Does the person have an opportunity to defend themselves against the enforcement?
    • Has sufficient factual determination been made that a court could review?
  102. Primary Jurisdiction doctrine
    Courts should not review a matter falling entirely under an agency's jurisdiction until the whole case can be considered in light of the agency's decision
  103. Three considerations of Primary Jurisdiction doctrine
    • Amer. Auto Manu. Assn. v. Mass. Dept. of Enviro. Protection (1st Circ. 98)
    • 1)whether agency determination lies at the heart of what Congress tasked the agency with
    • 2)Is agency expertise required to determine complicated facts/issues
    • 3)Would agency decision assist the court
  104. Chevron USA v Natural Resource Defense Council (SCOTUS 1984)
    • Created Chevron two-step
    • 1) Whether statutory language is clear using tradition tools of statutory construction (If not, move on to #2)
    • 2) Wether agency's interpretation is reasonable or permissible, or is it outside the range of ambiguity in the prevision
    • If yes, the Court will defer to Agency
  105. When is the Chevron defense not appropriate?
    • When the interpretation first occurs during litigation to which the agency is a party (Bowen v Georgetown Uni Hosp.)
    • When agency interpreting statute is not the only agency administering the statute
  106. US v Mead (Ambiguity Chevron test)
    • Chevron deference if
    • it appears that Congress delegated authority to agency general to make rules carrying force of law and
    • that the agency interpretation claiming deference was promulgated in the exercise of that authority
  107. Barnhart v Walton approach to deference
    • Issues matter when determining whether to defer to agency's determination:
    • interstitial nature of legal question
    • related expertise of agency
    • importance of the question to the administration of the statute
    • Careful consideration of the agency
    • Length of time the consideration has been consistent over time
  108. The difference between Skidmore and Chevron defenses
    • Chevron- strong defense, as delegated authority to make law was given by congress
    • Skidmore- Weaker defense, courts should defer to agencies b/c of their expertise and experience
  109. Bowles v Seminole Rock & Sand Co - judicial deference to agency interpretation of its own rules
    • When interpreting an administrative regulation, Crt will defer to agency construction unless:
    • 1) plainly erroneous
    • 2) inconsistent with the regulation
  110. Bowles v Seminole Rock & Sand Co - How crt decides whether to defer to the agency interpretation of its own rules
    • 1) Crt examines the language of the statute/constitution to determine whether the intepreted language is unambiguous - if so, the agency's interpretation is irrelevant
    • 2) Does the constitution/statute make a particular intepretation innapropriate?
    • 2) If not, that intepretation is controlling unless plainly erroneous or inconsistent with the regulation
  111. Different methods of analysis whether Crts should defer to agency interpretations of statute and its own rules
    • Christensen/Mead- Crt should give weak Skidmore deference (based on experience) to interpretation of statute, unless Barnhart factors are present and convince the Crt that Congress intended a strong deference
    • Barnhardt factors- the granular nature of the legal question; related expertise of the agency; importance of question to administer the statute; careful consideration of the agency over time
    • Seminole Rock/Auer- Crt gives strong deference to agency statements of interpreting its own rules (note* same deference is not given to agency interpretations of statute governing the regulations being interpreted)
    • Gonzales v Oregon- agency cannot "parrot" statute in a N&C regulation and then expect strong crt deference to its intepretive policy statements
  112. Gonzales v Oregon (judicial limits on Seminole Rock deference)
    • agency cannot "parrot" statute in a N&C regulation and then expect strong crt deference to its intepretive policy statements
    • AG of OR issued a regulation copying a Controled Substance statute, then interpreted the rule to exclude assisted suicide drugs.
    • SCOTUS found no deference as the agency did not use its expertise to formulate the administrative regulation, and was hiding the ball behind Seminole Rock deference.)
  113. Evidentiary threshold for formal adjudications/rules
    • "Substantial evidence"
    • For rules/adjudications under APA sections 556 and 557
    • Some statutes require substantial evidence for hybrid rulemaking as well
  114. Definition of "substantial evidence"
    • Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion
    • Less rigorous than "clearly erroneous"
    • More rigorous than "no basis in fact"
    • If a reasonable person reviewing all the evidence would decide that a preponderance of the evidence supported the agency's decision, the deference is given by the crt.
  115. Standard of review of questions of fact under hybrid rulemaking
    • Arbitrary and capricious
    • APA section 706(2)(A)
    • Crt overrules decision when it finds decision was not based on consideration of relevant factors or if there was a clear error in judgment (Citizens to Preserve Overton Park, Inc. V. Volpe)
  116. What does a crt use to review an agency decision (formal and informal)? Two exceptions?
    • The record in front of the agency
    • Formal- formal evidentiary record compiled during the hearing on the record
    • Informal- The information before the decisionmaker at the time of the decision
    • Exception 1- if the informal adjudication process does not allow a person to provide information for the record
    • Exception 2- when the person raises a serious claim of prejudice, bias, or wrongful influence
  117. Motor Vehicle Manufacturer's Assn. V. State Farm Insur.
    • Crt: Agency's failure to consider reasonable alternative to rule (airbags instead of automatic seatbelts) meant the decision was arbitrary and capricious.
    • The thorough consideration of the decision taken was not enough
  118. Overton Park de novo review circumstances
    • If an adjudicatory action is accompanied by inadequate factfinding procedures
    • "To establish the relevant facts as to the applicability of any rule"
  119. Londoner v. C. & County of Denver (SCOTUS 1908)
    Starting point for the study of agency adjudications and what process is required
    • A tax is assessed under Denver's charter against land owners to pay for paving a road adjacent to their property. The charter provision allowed Denver to assess taxes for public works against certain property owners who will specially benefit from the public work, after due notice and opportunity for hearing. Denver provided notice that land owners could protest the tax in writing, and Londoner did so, but passed the tax without a hearing. CO Supreme Court upheld the law.
    • Crt: Londoner was not offered a real opportunity to be heard. The deprivation of property without the statutorily required opportunity to be heard amounts to a violation of Londoner's due process.
  120. In re Asbestos Litigation
    difference between adjudicative and legislative facts within the fact-finding process in regulatory action
    • Legislative fact- those which have legal reasoning and the lawmaking process -generalized factual propositions which aid the policy maker in determining questions of policy and discretion
    • Adjudicative facts- the facts of the particular case - relate to specific parties and their circumstanceswho did what, where, when, how, why
  121. Bi-Metallic Investment Co. v. State Board of Equalization of Colorado (SCOTUS 1915) (Rulemaking as prospective)
    • The Board mandated a 40% increase in property values for purposes of tax assessment. Bi-Metallic sued claiming a taking without an opportunity to be heard.
    • Crt: For efficient administratability, there must be a limit to individual argument in matters that affect the general public. Where a rule is general, it becomes impracticle that everyone affected be afforded an opportunity to "have a direct voice in its adoption.
    • The Constitution does not require all public acts to be done in town meeting or assembly of the whole
    • Large groups of similarly situated entities may not have a right to an individual hearing even if their property is negatively affected
  122. Coniston v. Village of Hoffman Estates (7th Circ. 1988)
    (elected decision makers)
    • The Constitution does not require all public acts to be done in town meeting or assembly of the whole
    • Large groups of similarly situated entities may not have a right to an individual hearing even if their property is negatively affected
  123. Humphrey's Exec. v. US (SCOTUS 1935) (limiting Myers)
    • Humphrey was names commissioner of FTC by Hoover for a term of 7 years. Statutory removal was allowed for "inefficiency, neglect of duty, or malfeasance." Two years later Roosevelt asked him to resign and fired him when he wouldn't. Humphrey did not agree and insisted that he should receive pay (which his wife pursued post-mortem).
    • Crt: FTC was estalblished to be nonpartisan and impartial, neither legislative nor executive, but rather quasi-legislative and quasi-judicial. Constitution does not grant absolute authority to POTUS to remove all officers at will.
    • Unlike postmaster in Myers, commissioners are granted inherent quasi-legislative and quasi-judicial functions. Such functions necessitate independence, which cannot be maintained if commissioners must face removal if they displease POTUS
    • POTUS still has ability, per Myers ruling, to remove purely executive officers at will.
  124. Wiener v. US (SCOTUS 1957)
    • Congress established the War Claims Commission for a period of 3 years to adjudicate under the law matters involving reparations to internees (inter alia).
    • Commissioners were Senate confirmed, but the primary statute was silent as to removal.
    • Eisenhower removed Wiener and replaced him the next day through a recess appointment. Wiener appealed in Federal court.
    • Crt: The President does not have inherent authority to remove independent agency officers at will absent explicit Congression intent as to whether or not to limit POTUS authority to do so. Courts look to whether
    • 1) independent agency's duties require independence (ex. adjudication under the law) or
    • 2) whether Congress intended the agency to be independent of coercive influence that at will removal portends.
  125. US v. FL East Coast RR Co. (SCOTUS 1973) (Ambiguity of "Hearing")(Creation of "Hybrid Rulemaking")
    • Congress tasked ICC with establishing per diem rates for RR's using another RR Co.'s railroad cars. The ICC convened an informal conference to discuss objections to the roughly planned rates and compiled information. A year later an interim report was issued including tentative decision and notice for the RRs to file position papers within 60 days. The ICC overruled  objections and implemented the interim plan. Two RR companies brought action to set aside the per diem rates established, claiming violation of APA section 556(d) [Required to have an adversarial like hearing for adjudications]. District Court found for the RRs saying a formal process was required.
    • Crt: The term "hearing" in APA section 553 is controlling absent Congressional intent for something more formal (like "on the record" - APA section 556). Section 553 does not mandate oral arguments to satisfy a requirement for a "hearing." Even when a statute requires a formal rulemaking process under APA s.556, submission of all or most of the evidence can be in written form if a party will not be "prejudiced thereby."
    • When public policy is at stake and when factual underpinnings have already been found, administrability of regulatory decisions cannot be bound strictly by the need to be supported
    • ****N-and-C rulemaking becomes the norm
    • ****after hearing does not necessarily mean a formal hearing
  126. Two situations where formal rulemaking is required
    • Required if explicitly required by statute
    • Required if required to be "on the record"
  127. City of W. Chicago v. NRC (7th Circ. 1983) (presumption of informality)
    • NRC granted Kerr-McGee (KM) a license for on-site storage of contaminated soil from offsite locations. Chicago challenged the license in court. The lower court enjoined NRC while it considered the city's request for a hearing.
    • Controlling statute said Commissioner will grant a hearing upon request by anyone who will be affected by proceeding. NRC's regulation holds that if an action does not require a hearing and the Commissioner has not found a hearing is in the public interest, THEN a proposed rule must be published in the Fed. Reg. Futher, NRC reg says the Commisioner can determine an opportunity for a public hearing should be afforded.
    • Crt: There is a presumption of informality in the absense of an explicit legislative command for more formal process. NRC's decision is upheld.
  128. Hemp Ind. Assoc. v. DEA (9th 2004) (Statute trumps APA)
    • DEA informally regulates the outlaw of synthetic THC products. Law requires a formal rulemaking process.
    • Crt: Invalidated rule.
  129. Chocolate Manuf. Assoc. v. Block (4th 1985) (Logical Outgrowth)
    • USDA is tasked with enacting the Supplemental Food Program for Woman, Infants, and Children program (WIC). Congress tasked USDA with assuring the appropriate levels of fat, sugar, and salt content in foods. Agency proposed a rule to eliminate sugary cereals, but did not discuss flavored milk. The USDA received 78 comments asking flavored milk be banned from WIC. USDA banned flavored milk and the Manuf. Assoc. sued saying that the final rule was so different from the proposed rule that it was not given proper notice.
    • Crt: When the final rule deviates from the proposed rule, it must be a logical outgrowth from the original rule. Otherwise proper notice was not given.
    • Is it "in character with"?
    • Does it "materially alter"?
  130. Emily's List v. FEC (D.D.C. 2005) (must participate in N&C to have standing)
    Crt: Emily's List did not participate in the agency's notice and comment rulemaking process. Their request for standing was scrutinized heavily.
  131. Tripoli Rocketry Assoc. Inc. v. ATF (D.D.C. 2002) (Agency use of letter )
    • FTA sends a letter to Aerotech, makers of a model rocket fuel 'APCP', saying APCP was an explosive and that its use must be limited. Tripoli takes issue and sues.
    • FTA says that this in an interpretive rule, or in the alternative a party-to-party letter
    • Crt: Three key indicators that a rule was made:
    • official pronouncements made on behalf of ATF
    • Has only future effect from the date of the first announcement
    • statement were designed to convey a final pronouncement of ATF's legal position
    • This is in fact a rule.
  132. Sugar Cane Growers Cooperative of FL v. Veneman (DC.C. 2002) (Notice requirement for N&C) (Harmless error and failure to follow N&C)
    • Food Security Act allowed the USDA to pay farmers in-kind (PIK program) with sugar in return for their not growing sugar crops. Farmers bid to be paid in kind for a percentage of the cost of the crop they would destroy, with participation in the program limited to the price paid and no future increases in farmed land. USDA indicated it would not create the program without proceeding with N&C rulemaking, but did so after announcing in the Federal Register a "Notice of Program Implementation" without APA rulemaking.
    • Plaintiff claimed the rule void b/c USDA promulgated the rule without N&C. USDA says PIK was not a real rule, was an isolated agency act, and had no future effect on any third party. USDA argued that even if N&C was not followed, the error was harmless. District Court grants summary judgment for USDA.
    • Crt: Cooperative wins. A press release in the Federal Register is not sufficient notice, and "utter failure to comply with N&C cannot be considered harmless if there is any uncertainty at all as to the effect of that failure. The court can invalidate the rule because the rulemaking process was not followed."
  133. Morton v. Ruiz (SCOTUS 1974) (Agencies can fill the gap but must give notice)
    • Mr. Ruiz (American Indian) moves near a reservation to work in a mine. Mine shuts down and Ruiz applies for benefits from Ind. Affairs. He is denied based on an UNPUBLISHED agency interpretation of a law commanding BIA to "provide welfare services to needy Indians" to mean only to grant benefits only to Indians living on reservations, not near them. Ruiz sues based on lack of notice.
    • Crt: APA holds that rules that affect substantial rights of individuals or their obligations must be promulgated after sufficient notice is given. BIA failed procedurally. Though a benefit (rulemaking not required for benefits under APA s553), the rule which governs how the benefit is given must be promulgated in a manner in which adequate notice is given.
    • "The power of an administrative agency to administer a congressionally and funded program necessarily requires the formulation of policy and the making of rules to fill and gap left, implicitly or explicitly, by Congress."
  134. Motor Vehicle Manuf. Assoc. v. State Farm Mutual Auto Insurance Co. (SCOTUS 1983)
    (Rescinding of rule is agency action)
    (Correlation requirement between facts found and rule made)
    • (Arbitrary of capricious) National Highway Traffic Safety Administration rescinds airbag rule.
    • DOT began instituting a mandatory passive restraint regulation which phased in the requirement that large vehicles have seat belts or air bags. However, a new Secretary assumed office and ordered a one year delay. The agency issued notice, received written comments, held a public hearing, and issued a rule retracting the passive restraint requirement. The agency justified the retraction by stating that it could no longer find enough safety benefits resulting from the use or airbags and safety belts to justify the rule. The ruling wasn’t the result of safety belts and airbags’ ineffectiveness in preventing death, rather b/c 99% of manufacturers were installing automatic seat belts anyway. Therefore, the benefits of airbags were no longer apparent. MVMA believes the court should evaluate the rule retraction on the basis of a narrower test than the arbitrary and capricious test.
    • CRT: What is the standard by which an agency action is deemed arbitrary or capricious?
    • The agency failed to consider important factors before the agency
    • The agency failed to consider factors that Congress said it must consider. (Morton v. Ruiz)
    • So implausible that it couldn't be ascribed to indifference
    • This is a rulemaking. There is a correlation requirement - there must be a correlation between the facts found and the choice made.
  135. Component parts of what makes a decision arbitrary
    • When the agency considers and relies on factors that are not envisioned by Congress
    • When the agency does not consider important factors of the problem: both sides can advocate here easily
    • When the agency offers an explanation for its decision that runs counter to the evidence before the agency: the record is paramount
    • So implausible that it could not be ascribed to a difference in view or the product of agency expertise
  136. Two exceptions to judicial review
    • If the statute bars judicial review
    • If the agency is not acting (inaction is not judicially reviewable)
  137. USA v. Nova Scotia Food Products (2nd 1977)
    (most disclose data upon which decision was made)
    • USDA issued proposed rules about processing whitefish regulating the time-temperature-salinity (TTS) process by which the fish can be processed with a reduced risk of botulism. The industry commented that alternatives should have been considered, that the process would render the whitefish market unmarketable, and that a fish-by-fish process should be undertaken. The agency made the proposed rule on undisclosed research and data that it did not release prior to the rule being issued.
    • Crt: The process was void because the lack of an expression of the basis upon which the rule was proposed meant that
    • Failure to disclose the underlying data upon which a rule is proposed may void a rule for procedural error.
  138. CA Hotel and Motel Assoc. v. Industrial Welfare Commission (Cal. 1979)
    • CA orders Order 5-76 fixing wages, hours and conditions of employment in the public housekeeping industry.
    • Under CA law each order was required to be accompanied by a statement of basis and purpose, which was to be substantive enough to reflect the factual, legal, and policy foundations for the action taken. Both industry and labor opposed the law. Some industries are granted exemptions.
    • Crt: The reason and purpose statement was supposed to be an explanation of how and why, discussing the salient comments. It did not and was a procedural failure.
  139. Sierra Club v. Costle (D.DC 1981) (Ex parte communications
    • EPA was trying to promulgate standards for SO2 emissions per the Clean Air Act. It issued a standard of .5 per million. EPA received late comment submissions after the comment period closed, and also had ex parte communications with influential members of Congress and the President's staff to lower the standard. The rule is promulgated at a higher ppm and an environmental group sues.
    • Crt: Essential information must be docketed, defined as information on which the rule is based. The information discussed at the meeting existed elsewhere on the record. The ex parte communications did not void the process.
    • There are two conditions which must both be met for a rulemaking to be overturned because of ex parte communications-
    • 1) The pressure on the decision maker must be designed to make the decision maker decide based upon factors not considered by Congress, and
    • 2) The pressure forced consideration of non-statutory factors.
  140. Two necessary conditions for overturning a rule making due to ex part communications
    (bonus: common terms used to describe)
    • Sierra Club v. Costle
    • 1) The pressure on the decision maker must be designed to make the decision maker decide based upon factors not considered by Congress, and
    • 2) The pressure forced consideration of non-statutory factors.
    • Terms to use: "unalterably closed mind" ; "substantial prejudice" ; "irrevocable taint"
  141. Vermont Yankee Nuclear Power Corporation v. Natural Resource Defense Council, Inc. (Scotus 1978)
    • (Courts cannot impose additional procedural constraints beyond procedural minimums required by the constitution, Congress, or by the agency itself) (affected by Motor Vehicle Assoc. v. State Farm's hard look into substance of agency decision)
    • NRC granted Vermont Yankee a permit to build a nuclear power plant in VT. Thereafter, Vermont Yankee applied for an operating license. Respondent Natural Resources Defense Council (NRDC) objected to the granting of a license and a hearing on the application commenced. In a supplemental notice of hearing the Commission indicated that while discovery or cross-examination would not be utilized, the Environmental Survey would be available to the public before the hearing along with the extensive background documents cited therein. Commission issued the license to Vermont Yankee. NRDC appealed against issuance of license. Appellate Court for Columbia Circuit determined the rulemaking proceedings to be inadequate favoring respondents.
    • Crt: Overturned. "Nothing in the APA, NEPA, the circumstances of this case, the nature of the issue being considered. past agency practice, or the statutory mandate underwhich the Commission operates permitted the court to review and overturn the rulemaking proceeding on the basis of procedural devices employed (or not employed) by the Commission so long as the Commission employed at least the statutory miima, a matter about which there is no doubt in this case.
  142. Chevron, USA inc, v Natural Resources Defense Council (SCOTUS 1984)(Chevron deference - low level of judicial review)
    • EPA tasked with enacting air quality standards pursuant to an amended Clean Air Act. EPA required to test whether individual states achieved standards and to issue permits regulating new or modified "stationary sources" of pollution. POTUS Reagan came to office and EPA enacted new regulations allowing states to treat all polluters under a "bubble," allowing the overall emissions of a plant to be aggregated- allowing a single bad polluter to shut down one part of its plant to be, on the aggregate, below the threshold.
    • Crt: Must show deference to an agency rule making decisions. Created the Chevron 2-step:
    • Chevron two step (w/ step 0)
    • Step 0) Is the agency empowered by Cong to make the regulation?
    • Step 1) Is the governing statute unambiguous?
    • Step 2) If the statute is unambiguous, is the decision of the agency a "permissible construction" of the statute?
  143. Auer v. Robbins (SCOTUS 1997) 
    • (Judicial deference to agency's interpretation of its own regulation otherwise fairly promulgated)
    • Fair Labor Standards Act (FLSA) exempts "bonafide executive, administrative, or professional" staff from overtime pay requirements. DOL promulgates a "salary-based" test to determine whether an employee is an executive employee (not needing wage protection) or a regular employee (needs wage protection). DOL interprets its own regulation to say that an employee is an executive employee if they receive a salary not subject to reduction on the basis of the quality of work performed. A local police leader says his officers are exempt from the overtime requirement because they receive a salary, and the police say they are not exempt because they can be docked pay for disciplinary matters.
    • Crt: The salary-based test is a matter created by the DOL, within the statutory framework legislated by Congress, so the court will defer to agency interpretation of its own regulation.
    • The agency has the power to resolve ambiguities within its own regulations
    • Standard of review: plainly erroneous or inconsistent with the regulation
  144. U.S. v. Ward (D. Penn 2001) (Chevron and Auer in a Criminal Case)
    • What do you do with an interpretation of a regulation is entitled to Auer deference in a criminal context? Government argues that intentional failure to follow safety rules found under another agency's guidelines for handling a chemical.
    • Crt: Those things that are so prohibited as to lead to criminal penalties must be clearly stated. Otherwise an interpretation of a regulation by nature falls afoul of the void-for-vagueness doctrine.
  145. Christensen v. Harris County (SCOTUS 2000) (limited judicial deference to an opinion letter)
    • Under the Fair Labor Standards Act (FLSA), employees can earn comp time, but must be paid if it is not used. A local police force was concerned that it would not be able to pay out all the officers for the comp time they've earned. The police force asks DOL for an opinion letter asking whether it could force its officers to take the time off rather than be paid. DOL says yes, provided that it is agreed upon in the employment contract. The police officers sue.
    • Crt: The opinion letter is not arrived at through rulemaking or an adjudication, but rather through a simple interpretation of existing laws and regulations. Judicial deference should be limited to "respect" for the letter, but no Chevron/Auer deference should be given.
  146. Skidmore v. Swift & Co. (SCOTUS 1944) (judicial review for non-formal and non-N&C rules)
    • Seven employees are suing under FLSA. Firefighter Employees were required to be on call, they sued. DOL Administrator issued a guideline explaining its interpretation of the regulation. What weight should be given to this guideline?
    • Crt: Judicial deference to guildelines depends on four factors:
    • 1) thoroughness of evidence,
    • 2) validity of its reasoning,
    • 3) consistency with prior interpretations and actions, and
    • 4) persuasiveness.
  147. US v. Mead Corp. (SCOTUS 2001) (Congressional intent of final review)
    • CBP changed a classification of Mead’s imported goods from a planner to a bound diary.
    • Mead sought review in the Federal Circuit, and the SCOTUS ruled that no deference could be afforded to the disputed
    • action.
    • In court, Mead argued that the agency should not be allowed to change its revenue ruling on a whim. The court of int'l trade affirmed. The Federal circuit reversed, saying ruling letters are not entitled to deference because they did not go through N&C or a reasoned opinion in a record.
    • Review of court of international trade was de novo. If that's the case, then it was unlikely that the agency's review process was to be considered final agency action and subject to judicial reference.
  148. De La Mota v. Dep't of Education (2 cir. 2005)
    • (Agency handbook interpreting regulation not entitled to Chevron  deference)
    • Under Title IV you can have your student loans forgiven under certain circumstances. Crt: The handbook was not authoritative and that the agency was not bound by its own handbook, was not made with N&C. The manual can only be persuassive (Skidmore).
  149. National Cable & Telecom Assoc. v. Brand X Internet Services (SCOTUS 2005) (Agency interpretation of statute vs. prior court decision interpretation of statute)
    • (Chevron deference given to agencies over the opinion of any federal court other than SCOTUS, unless the opinion is based on unambiguous terms of a statute)
    • FCC promulgates rules saying the FCC should regulate basic service providers more than complicated service providers. Complainants (phone companies) are complaining that as phone companies - more regulated - they must compete with other companies that provide telephone and other services -less regulated. FCC says that they don't need to regulate entities that they don't want to, and makes a rule saying that they will only regulate simple phone providers.
    • Crt:  What should you do when an agency promulgates a regulation that is contrary to a circuit court's judicial interpretation?
    • Precedential effect that binds agency in the following circumstances:
    • 1) The "clear and unambiguous" nature of the opinion of the court
    • 2) The totality of the opinion
    • 3) It's clear from the overall scheme that no other reading is possible
    • A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron only if prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion
  150. Long Island Care at Home, ltd. v. Coke (SCOTUS 2007) (Strong Chevron - agency interpretation given Chevron deference by the Court)
    • FLSA exempts "domestic service employment" providing companionship services to the infirm from minimum wage and max. hours rules. DOL interprets the law in regulation saying companionship workers are those not employed by the infirm person or their family.
    • Two N&C regulations are at issue: 1) defines "domestic service employment" as household in nature in or about a private home of the person they are employed by, and 2) under a section titled "Interpretations" says that exempt employees are those who are employed by an employer or agency other than the family or household using their service.
    • Evelyn Coke, clearly under second regulation, argues the regulation falls outside the scope of Congress's delegation, the two regulations are inconsistent, and an interpretive regulation should not be given judicial deference (warrants a Skidmore review b/c it's persuasive under skidmore, not binding - not persuasive, not consistent). The agency pleads it can fill gaps in the statute through rules and regulations and that it is an expert in the field in which Congress delegated rule making authority. Crt: Congress's intent was for DOL to fill and interpret the gaps in the law. Chevron binds the courts to defer to the agency if the agency is acting within the authority given to it by Congress. As the regulations were made by a N&C rulemaking process Chevron deference necessary.
  151. Pac. Gas & Electric Co. v. Fed. Power Comm. (D. DC 1974)
    • Policy statements not applied are not judicially reviewable.
    • Companies claim Fed Power Comm should have gone through a comment process before issuing a rule. The new rule favored users over contracted parties to energy resources.
    • Agency: It's not a rule but a statement of policy so no comment is required.
    • Co.: There is a practical effect on the burden of proof makes this interpretation a rule.
    • Crt: "A properly adopted substantive rule establishes a standard of conduct which has the force of law." A general statement of policy does not establish a "binding norm." This is a policy and not a rule, and therefore not subject to judicial review because it has not been applied yet and it is unclear that it has a legal effect/is the culmination of agency action.
  152. Difference between Substantive and Interpretive Rules
    • Substantive: Effect a change in existing law or regulation which effect individual rights and obligations
    • Interpretive: Clarify or explain existing law or reg; Exempt from N&C; Represent agency's reading of statutes and rules rather than an attempt to make or modify laws or regs
  153. American Hospital Assoc. v. Bowen (DC CIr. 1987) (What makes a rule interpretive rather than legislative)
    • In 1982, Congress amended the Medicare system to create Peer Review Organizations (PROs) to review the compliance of health care providers with the Medicare Act. Congress left HHS with broad discretion to implement the PRO system. HHS issued a number of regulations to govern the PRO program, as well as a series of directives and transmittals. The directives and transmittals—containing a variety of instructions, guidelines, and procedures related to the PRO system—were issued without notice or comment. AHA petitioned HHS for N&C rule making, arguing the PRO regulations that HHS had issued were few/incomplete and that the bulk of the procedures governing PROs were not published as regulations. After HHS failed to respond to the petition, AHA sued, arguing that HHS had circumvented the N&C requirements of APA § 553 in issuing the directives and transmittals. AHA sought to have these directives and transmittals declared invalid.
    • Crt: An agency is not required to conduct N&C rulemaking when issuing a guideline or rule of procedure (organizing, establishing a way to achieve the substantial goals that are articulated in a rulemaking), when an agency gives notice of HOW it will go about implementing an existing standard
  154. Dismas Charities Inc. v USDOJ/FBP (6th Circ. 2005) (pure legal interpretations aimed at encouraging compliance are interpetive and don't require N&C)
    • Prison nonprofit contractor houses inmates during the 1st and last 6 months of their sentences per 18 USC 3621(b), which granted FBP discretion to designate a prisoner's incarceration location to be any available penal or correctional facility that meets minimum health standards. DOJ/OLC issues an opinion limiting what constituted incarceration, which FBP used to issue an internal memo curtailing which immates could go to the prison nonprofit house. The nonprofit sued, saying that the change should have been issued through N&C and that the change was substantive. The agency argued that it was merely an interpretation of the term incarceration to further compliance.
    • Crt: Rules that rely specifically and directly on the unlawfulness of its previous practice as determined by the OLC are interpretive. They do not change policy, but rather are a legal determination of what the applicable law already is.
  155. Center for Auto Safety v. Nat Highway Traffic Safety Admin (D.DC 2006) (Statement of policy distinguished from legislative rule)
    • Automakers historically made regional recalls for defects caused by atypical weather conditions. NHTSA send a letter to major automakers saying that though tolerated in the past, the agency was concerned about the effectivelness of regional recalls. NHTSA officials send policy guidelines to their offices saying so. The Center sues saying the policy statement was arbitrary and capricious because it was made without N&C.
    • Crt: This is not a legislative rule, as the policy was not mandatory. Rather it was a statement of policy that did not constitute final agency action. The agency had not fined an automaker for performing regional recalls.
  156. Gonzales v. Oregon (SCOTUS 2006) (Chevron step 0)
    • Under the Controlled Substance Act (CSA) the AG may declare certain drugs to be, or not to be, on schedules requiring different levels of control. A preemption provision in CSA gives deference to state medical law over federal where the field being regulated would typically be under state law. OR legalized assisted suicide through the use of drugs regulated under CSA. The AG argues that they are interpreting their own regulations.
    • Crt: The CSA did not grant authority to the AG to determine such matters, so it did not pass Chevron step 0. The AG simply parroted the statute through the use of the words "legitimate medical purpose" and thus should not be given either Auer or Skidmore deference. HHS did not do fact finding, which was required under the statute.
  157. Jurisdiction and proper venue
    Which court is original court of jurisdiction
    • District Court
    • Must meet requirements of 28 USC 1331
    • Harm- specific injury
    • Federal questions
    • Unless a statute specifies a particular court
  158. Jurisdiction and proper venue
    Which court is the appellate court?
    • Court of appeals - for judicial review of a record
    • no independent fact-finding
  159. Three constitutional considerations for jurisdiction
    • standing 
    • ripeness (Can the court resolve the problem by looking at the record? Is there imminent harm?)
    • finality (final agency action, with force of law)
  160. Assoc. of Data Processing Service Org v. Camp (SCOTUS 1970)(Standing under the APA)
    • Since the assoc. is not a party protected under the statute, why do they have standing?
    • The APA grants standing to those who are likely to be financially injured
    • A person injured with an interest under the plaintiff
    • Whether agency review has been precluded by statute?
    • There is no preclusion of judicial review by statute
    • There is a genuine dispute that can be litigated - not just an ideological dispute
  161. Lujan v. Defenders of Wildlife (determining standing- INJURY)
    • Endangered Species Act seeks to protect species by instructing agency to promulgate regulation of a list of endangered species, and to define their critical habitat.  Fish and Wildlife Service promulgated a regulation that opened it to other countries, but DOI reinterpreted section to say that law is subject to US and high seas, NOT foreign nations.
    • Crt: to determine standing you need to determine the nature of interests involved and nature of injury. Here, the controversy begins with how P claimed he had proved the injury – Ps were going to return at some time in the future… this is not concrete enough for the Court says the claim of future injury is speculation and fantasy.
  162. Simon v. Eastern Kentucky Welfare Rights Organization (third party injury addressed cannot be addressed by action against agency)
    • Before: you got to the hospital and get your emergency care, you cant get care beyond the minimal services if you are a 501c3. For non-profit hospitals to be declared for profit, would have huge ramifications. Indigents bring suit against IRS because IRS found new ruling that hospitals are still deemed as charitable if they provide emergency room visits to low-income people and nothing else (making it less restrictive).  Individuals bring suit for themselves and others in similar situations; claim is that by making ruling less restrictive, IRS encourages hospitals to deny services
    • Crt: “The case or controversy limitation in Art. III still requires that a federal court act only to redress injury that can be fairly traceable to the challenged action.” “It is purely speculative whether the denials of service specified in the complaint fairly can be traced to petitioners “encouragement”.  The complaint suggests no substantial likelihood that victory in this suit would result in respondents receiving the hospital treatment they desire.
  163. Frank Krasner Enterprises v. Montgomery County, MD (Simon applied)
    • County changed law so that would only give grants to land as long as there was no gun show, so person who used to have an annual gun show brought suit against county.  
    • Crt: No Standing—because let’s say court rules in favor of claimant, court can’t compel landowner to rent space to him.
    • same problem as the Simon case – you sued Montgomery County but really you want the agricultural center to give the relief and they are NOT a party to the lawsuit.
  164. White Tail Park, Inc. v. Straube
    Nudist camp for kids brought suit because VA law required nudist camp attendees to have guardian accompany them on the camp.  Court found standing because “a regulation that reduces the size of the speaker’s audience can constitute an invasion of legally protected interest”
  165. Bennett v. Spear
    (injury in fact b/c high likelihood of injury)
    • Endangered Species Act requires DOI to promulgate rules over list of endangered species.  The Act requires DOI to insure that action authorized is not likely to jeopardize the continued existence of any listed animal.  If agency determines that it MAY adversely affect species, it must engage in formal consultation with Fish and Wildlife Service, which will then issue an opinion which will outline alternatives if effects are determined. Commercial farmers competing for water sue.
    • Crt: There is a citizen suit complaining about future economic injury. P has standing because the high likelihood of injury. The Act explicitly allows "any person" to sue the government over an alleged violation (unlike Data Processing- "Zone of Interest" applied to anyone)
  166. Abbott Laboratories v. Gardner (Ripeness without injury)
    • (Ripeness can precede actual injury if stemming from final agency rule)
    • Law says all drugs must have both proprietary name and the name most people understood them by. Plaintiff, a drug company (of 90% of drug market), challenged this, P had materials all printed out and sought a pre-enforcement review. Parties had two choices- pay a lot of $$ to change labels OR go to jail.
    • Crt: Declaratory/pre-enforcement review allowed b/c the regulation is final and would penalize drug companies either civilly or criminally.  The cost would be great to companies, and while there is no current injury the regulation is final. Under APA § 704, person can bring suit if statute allows it or final agency action for which no other remedy other than in court.
  167. Toilet Goods Ass’n v. Gardener (Ripeness and final agency rule containing conditions)
    • Petitioner is a cosmetic manufacturer (has 90% of field), and seek injunctive relief against agency (HHS) because it exceeded its statutory authority: HHS promulgated rule after N&C that if company who uses color additives refuse inspectors access, then certification service is suspended until corrective action is taken.
    • Legal issue is raised, but not appropriate for judicial resolution.  To determine ripeness, court (1) looked at whether issues tendered were appropriate for judicial resolution, and (2) to assess the hardship to the parties.   Here, the agency simply MAY have access, and MAY suspend, but the agency had done NONE of those things to the party.  
    • Steps for determining Ripeness:·      
    • Is it a legal question?·      
    • Is the rule final?·      
    • Is there a definitive harm/immediate harm?
  168. 3 Steps for determining Ripeness:
    • Is it a legal question?      
    • Is the rule final?·      
    • Is there a definitive harm/immediate harm?
  169. Bowen v. Michigan Academy of Family Physicians
    • Presumption of judicial review in absence of clear Congressional intent otherwise
    • Association of doctors filed suit to challenge validity of regulation, and HHS claims courts can’t review Act.
    • Congressional silence=judicial review allowed; statutes that declare agency action is final are construed to permit judicial review (final in admin branch, not in courts)
  170. Heckler v. Chaney (Heckler Defense to inaction)
    • Prisoners complained to FDA that drugs used for lethal injection should not be used for that and violated FDCA because FDA did not approve the use of this drug for lethal injections.  FDA responded saying no action was going to be taken, said they act when there is serious danger to public health.  Prisoners argue the drugs are not labeled properly, that the drugs as used represent a dangerous practice known to the FDA, and often non-doctors administer the drugs.
    • Crt: By deciding to not act is an agency action, and that action gets deference. The law in this instance is silence.an agency's decision not to pursue an enforcement action is presumptively unreviewable, as such actions are "committed to agency discretion by law" under § 701(a)(2).
  171. MA v. EPA (Innaction not an option - statutory duty for agency action)
    • MA files a 553(e) petition to ask the EPA to act on global warming. EPA conducted N&C and afterwards affirmatively said they would do nothing. EPA claimed that inaction was in their discretion per Heckler. MA Challenged the order.
    • Crt: 701 says that if a statute precludes judicial review then it does, but only if the statute says so. The Clean Air Act gives EPA authority to act. There is no statutory preclusion of judicial review. Thus, EPA is subject to judicial review – this is different than forcing EPA to act, but its argument that it can't act fails.
    • Crt: EPA was told to act and create policy. In response to a 553(e) petition, there must be a logical reason why it did not act.
  172. In re Bluewater Network & Ocean Advocates
    • Exxon spilled oil into AK, and Congress enacted the Oil Pollution Act which broadened federal liability for oil spills and required prevention measures.  Coast Guard, the enforcing agency, hasn’t promulgated any rules since the Act’s birth, 10 years ago.  Ocean Advocates seek writ of mandamus to compel them to act.  Coast Guard started to act in 1991—N&C, studies—set up standards, but left open the installation requirements because of technology issues.
    • Court: issued writ of mandamus because of violation of act and the extraordinary circumstances. This is a 9 year delay in the face of a Congress command to establish use requirements and CG disallowed any further action
  173. Factors to determine if Crt should issue writ to agency upon inaction
    • (1) there is a legislative timetable,
    • (2)delay is egregious,
    • (3) the action sought is arguably non-discretionary,
    • (4) important interest at stake,
    • (5) delay is unreasonable and has prejudicial effect, and
    • (6) writ would serve the public and claimants
  174. SEC v. Chenery Corp (Notice is required, and retroactive rules tend to be invalid)(Mischief rule)
    • The SEC Commission decides that a utilities company's reorganization plan is not approved because it allows managers to obtain prefered stock at the same value as the public. The SEC's justification for its decision was based on its history of dealings with utility reorganization; however, the SEC had no prior regulation or decision on point for the issue, and had denied the propose reorganization without having provided Chenery Corp. notice that their plan was not up to a regulatory standard. All of this was based on a statutory provision allowing the SEC to regulate 'unfair trade practices.'
    • Crt: While retroactive in application, the adjudication (which created a new rule) was validly based on the agency's experience. The retroactivity must be balanced against the intent of Congress and the statutory scheme for the agency to administer matters. "If that mischief is greater than the ill effect of the retroactive application of a new standard, it is not the type of retroactive application of a new standard, it is not the type of retroactivity which is condemned by law."
  175. Mischief rule
    • SEC v. Chenery Corp
    • Retroactive application of regulations/adjudications
    • "If that mischief is greater than the ill effect of the retroactive application of a new standard, it is not the type of retroactive application of a new standard, it is not the type of retroactivity which is condemned by law."
  176. Bowen v. Georgetown Uni Hospital (SCOTUS 1988) (retroactive rulemaking is shot down)
    • HHS changes the rules regarding how it calculated the "wage index" (used to reflect salary levels or hospital employees). Georgetown received a lot of money under the former scheme, and the new rule, being retroactive and prospective in nature, allowed HHS to bring an enforcement action to collect the overpayment.
    • Crt: Invalid. The retroactivity was akin to a lack of notice.
  177. Primary retroactivity vs. Secondary retroactivity
    • Primary retroactivity - (problematic) new rule alters the standard applied to past actions
    • Secondary retroactivity - (not as problematic) New rule alters standards applied to former and future actions but penalizing only current and future actions.
  178. A.L.A. Schechter Poultry Corp. v. United States (1935)
    • National Industry Recovery Act allowed the President to approve codes of fair competition, including delegating standard making to non-governmental bodies and associations provided that the association did not discriminate and that the code does not promote a monopoly or unfair trade. Live Poultry Code promulgated under the NIRA regulating poultry.
    • Crt: Congress gave no standards or way for limiting the President's authority. Code making authority by a non-government group is unconstitutional.
  179. FDA v. Brown & Williamson Tobacco Corp. (SCOTUS 2000) (Congressional delineation of authority)
    • Food, Drug, and Cosmetic Act (FDCA) granted the authority to the FDA to regulate drugs and devices. FDA asserted that it did not have the authority to regulate tobacco. Then in 1995 is changed course and regulated it, laying out health restrictions (20 per pack, limits on adverts, etc.).
    • Crt: Congress clearly thought that tobacco should be regulated. FDA statute did not contain the authority from Congress to regulate tobacco, just "drugs" and "device." Federal Trade Commission had jurisdiction though prior statutes. The FTC statute was an expression of Congressional intent that FDA should not have the authority to regulate tobacco. The FDA was overstepping its bounds by creating new public policy that would be better handled by Congress. The FDA was only allowed to work within the framework delineated by Congress.
  180. Clinton v. City of NY (SCOTUS 1998) (Line-item veto)
    • NY government hospital argues the line item veto will keep it from recuperating money it thought due.
    • The Line Item Veto Act allowed the president to cancel in whole three types of provisions: (1) any dollar amount of discretionary budget, (2) any item of new direct spending, or (3) any limited tax benefit.
    • Crt: Only Congress has the authority to modify or repeal laws. The President has the authority to only veto entire bills. Even the President cannot expand or modify the jurisdiction granted him by Congress or the Constitution.
  181. NLRB v. Bell Aerospace Co. (SCOTUS 1974) (SCOTUS protects ability of agency to adjudicate when it faces a complex problem with substantial facts)
    • Bell declared that their buyers were managerial employees and thus not covered under NLRA. NLRB sued, saying the buyers were not managerial and were covered under NLRA and able to form unions. Crt. of App. said a rulemaking was required because any Board decision that one set of buyers was effectively saying that all buyers across America were not managers.
    • Crt: There are tens of thousands of individual companies, each idiosyncratically established and run, that would make any rule of general applicability too narrow. Thus an adjudication, based on a case by case analysis, is the most proper way to tackle the complexity of the problem, especially as there are enough facts to do so.
  182. Questions to determining interests
    • Liberty or property?
    • Statutory right to a procedure?
    • History?
    • Justice and fairness compels it?
    • What is the weight of the interest?
  183. Cafeteria & Restaurant Workers Union v. McElroy (SCOTUS 1961) (Nat Sec interest affects what process is due)
    • (Was Ms. Brawner entitled to a hearing?)
    • Ms. Brawner, a short-order cook, worked at a cafeteria in a Naval gun factory building that required her to properly use a security badge to access the building. Her employer noted her good work behavior and performance. The Navy pulled her clearance because of a determination that she failed to meet the security requirements based on her badge being pulled. Ms. Brawner sued in district court, arguing that her badge should be returned to her so she may meet the security requirement to go back to work.
    • Crt: The gov't has a national security interest in controlling access to the facility, which is a strong interest. Having the job is not a privilege, and being fired from one for a reason that is not illegal does not raise a constitutional question. Absent legislation, government employment can be revoked at the will of the appointing officer.
  184. Goldberg v. Kelly (SCOTUS 1970) (Benefit-bypass of rulemaking process demands a fair hearing prior to deprivation of the benefit)(Timing of hearing vis-a-vis deprivation)(Public assistance is a property interest)
    • Under reg, benefit recipient would receive notice, have seven days to act, there was a pre-cutoff assessment as to whether the benefit should be cut off, and a review by a supervisor. Recipient was allowed to submit a written, a response would typically be given, and redress could be sought in a "post-termination 'fair hearing.' "
    • Crt: The benefit interest is one necessary for sustenance of the beneficiary. A fair hearing is due before the beneficiary can be deprived of their property right. It is not entirely one of liberty, but more one of property. 
  185. Board of Regents of State Colleges v. Roth (SCOTUS 1972)
    • Roth, a non-tenured professor who had been working for a year, claims his contract is not renewed because he was critical of the University. Roth claims that he had a property interest in his job, and that he deserved a fair hearing before he was deprived of it. Roth claims he was denied the opportunity to have that hearing.
    • Crt: If you can't show that you have a liberty or property hearing, especially in a lower tier proceeding, then you have no right to a fair hearing. Roth lacked the interests, property or liberty, necessary to bring a hearing or case.
  186. Perry v. Sindermann (SCOTUS 1972) (Reasonable expectation of property can be an interest) (de facto tenure case)
    • Sindermann, a professor who had been teaching for ten years, is deeply involved in university politics. He claims he is fired for the views he voiced. He was close to receiving tenure.
    • Crt: Sindermann's reasonable expectation of a continuing benefit, to receive his contract renewal is an expected property interest. He is due a hearing.
  187. Mathew v. Eldridge (SCOTUS 1976)(How the form/timing of the hearing is determined)
    • Eldridge was receiving disability benefits from SSA (existing interest taken away = better case for deprived). He answered a questionnaire and based on those responses SSA made a tentative determination and ended his benefits. The decision was well documented, though it was behind the scene and without a hearing. SSA procedures offered Eldridge a right for a review, another rehearing, and potentially a full panel rehearing. Eldridge argues that by the time he would get to the full panel he would be without benefits for too long.
    • Crt: Goldberg is not controlling because the nature of the property. No hearing is necessary prior to the deprivation of this non-life threatening.
    • Three factors that determine the nature of the hearing:
    • 1) What is the individual's interest?
    • 2)What is the Gov't's interest
    • 3)What is the risk of error?
  188. Cleveland Board of Edu. v. Loudermill (SCOTUS 1985) (State law defines property - once property minimal constitutional requirements are necessary) (timing of hearing)
    • Loudermill fails to report a felony on his job application. During a file check he is dismissed without hearing, then retracted at a further hearing before being reinstated. Loudermill brings suit saying he was denied a hearing prior to his firing. His property interest is in his job and a liberty interest in having a speedy trial. Ohio law gives government jobs the status of property right.
    • Crt: The state law can define something as property, but once property is thus defined it cannot be taken away except in accordance with federal constitutional protections. The Matthews tests should be applied.
  189. Citizens to Preserve Overton Park v. Volpe (SCOTUS 1971) (What is needed in a basic adjudicatory proceeding - A record capable of being reviewed)
    • Law says the Sec of Trans may only use federal funds to pay for highways through public parks if no feasible or prudent alternative route exists. Legislation also necessitates public hearing is necessary, but doesn't detail what that entails. The governments (fed, state, local) decide to build through a park and zoo in Memphis. The city held a city council meeting and used the notes from the meeting as the "hearing." The Sec gave his decision without Overton Park says they want a de novo hearing.
    • District and Circuit court upheld the Sec's decision.
    • Crt: Reversed. The absence of any real findings makes it impossible to determine whether a decision was arbitrary, capricious, or an abuse of discretion. The council meeting notes, and the Sec's lack of expressed reasoning at the time of the decision, made the record too sparse.
  190. Hornsby v. Allen (5th Circ. 1964) (You must publish your standards for adjudications)
    • Hornsby applied for a liquor license and was denied without a stated reason. Ms. Hornsby brought suit under 28 USC 1343 to redress deprivation of her civil rights (she said it was a product of discrimination). The state statute suggests there should be standards for adjudicating license applications but let the local cities decide.
    • Crt: The lack of a published standard voided the adjudication process. There must be notice of criteria by which you'll be adjudicated.
  191. N. American Cold Storage co. v. Chicago (SCOTUS 1908) 
    • (strong Government interest can validate post-hoc adjudications)
    • Dangerous food was allowed under statute to be seized and destroyed without notice or hearing prior to the food's destruction. A hearing is afforded after the fact if the decision was incorrect.
    • Crt: Protecting the public well being and safety takes precedent over the property interest of the individual.
  192. Bowles v. Willingham (SOTUS 1944)
    • (Exigencies set aside Constitutional protection of property)
    • Mrs. Willington complains that she cannot raise the rent due to the Emergency Price Control Act of 1942. The Price Administrator (PA) sets the rates and there are several appeal level up to the Administrator via the Emergency Court of Appeals. Willington bypassed these appeal levels and brought the case to district court directly.
    • Crt: The exigencies of wartime conditions and the insistent demands of inflation control raises the government's interest in the matter. It becomes a "Constitutional bypass." Further, by bypassing the agency process and Emergency Court of App, the issue was not ripe & she did not exhaust her agency remedies as required under law.
  193. Heckler v. Campbell (SCOTUS 1983)
    • (Can an agency use a pre-determined formulation to make determinations affecting property interests?) (Must participate in rule making process to have standing)
    • HHS Secretary publishes via rulemaking a matrix under which medical-vocational guidelines are available to persons based on their level of disability. Claimant has a hearing about whether he is disabled, and is found to be; however, the matrix guided the decision that his disability allowed him to work thus limiting his disability payments. He claims a lack of due process because he did not have the opportunity to prove his inability to work.
    • Crt: Deference must be paid to the HHS rules as published through rulemaking. The participant could have participated in the rulemaking and didn't. There is an intersection between adjudication and rulemaking - the valid promulgation of the rules makes them usable during hearings.
  194. How to become an intervenor in an adjudication
    • Must show that they have something to offer- exs.:
    • interests that are compatible with the interest within the governing statute
    • can make the factual record better
    • a perspective that the applicant or deciding agency alone do not have all the facts
    • if intervening was the only forum where you could be heard
  195. United Church of Christ v. FCC (DC Circ 1966)
    • (People with consumer/civil rights have a place in the adjudicatory process even though they are not competitors)
    • Local Mississippi TV station that was racist sought a renewal of its license. FCC granted it a one-year renewal (typical was three years). Church of Christ, a black congregation, sought to intervene in the decision  
    • FCC said that the Church did not have direct economic injury or, in the alternative, was also not a competitor.
    • Crt: The FCC's rigid adherence to a requirement of direct economic injury denies standing to a group of people, represented by Church, who are directly concerned with and intimately affected by the performance of the licensee.
    • The test should be that intervenors must have a genuine and legitimate interest.
  196. Universal Camera Corp. V. National Labor Relations Board (SCOTUS 1951)
    • (Judicial standard of review is "substantial evidence" in the record to support the decision)
    • Agency is ordered to reinstate an employee who was a victim of retaliation. The controlling statute provided that the NLRB decision, if supported by evidence, shall be conclusive, and "evidence" was interpreted by the Court to mean "substantial evidence" within the parameters of the APA.
    • Crt: The courts role is to review the entire record to decide if it was supported by substantial evidence or in fact the other evidence on the record made the agency's decision not credible and not based on substantial evidence.
  197. Meaning of "substantial evidence"
    • Substantial evidence is more than a mere scintilla
    • It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
  198. Seacoast Anti-Pollution League v. Costle (1 Circ. 1978)
    • (What is required when "public hearing" is required?) (Absence of "on the record" in a non-APA statutory hearing)(ex-parte communication- substantial prejudicial standard)
    • Company filed an application to expel heated water into an estuary in the Gulf of Maine. They cannot do so without a permit from the EPA. The Company did not have a proper system and applied for a discharge permit and an exemption from EPA's standard for heated water expelling system.
    • Controlling statute said the EPA administrator can approve, after an opportunity for public hearing, an alternate plan if the EPA's standards are more stringent than necessary. Seacoast was not allowed to address expert information that the EPA then relied upon in its decision.
    • Crt: The intent of Congress matters more than having precise language matching the APA words of "on the record." Congress envisioned an adversarial-like process. EPA took information from a panel of experts and from that made a decision - that ex parte communication was 'substantially prejudicial'. Seacoast was denied the opportunity to refute the information provided by the expert, which made the 'public hearing' just a hearing. Congress intended that the hearing to be on the record even if the statute lacked explicit instructions to have it so.
  199. Dominion Energy v. Johnson (1 Circ. 2006)
    • (Chevron Doctrine applied to adjudications through deference to Agency determinations about Congressional intent)
    • Dominion filed suit against the EPA when it refused to grant Dominion a formal evidentiary hearing after applying for a discharge permit and an exemption. They didn't get the exemption. EPA used an informal process that used ex-parte information.
    • Crt: EPA does not have an non-discretionary duty to provide a formal evidentiary hearing. Therefore, it's interpretation as to whether an evidentiary hearing is required is subject to the Chevron Doctrine deference. Seacoast decision, though on point, held in part that the absence of 'on the record' language was ambiguous. After Chevron, an agency's interpretation of the statute should be given the same deference.
  200. (Morgan v US)(SCOTUS 1936)
    • ("The one who decides must hear")
    • Suits are filed against the Secretary of Ag to enjoin him from enforcing prices in the livestock determination that he made. He made it based on information employees compiled for him. The Assistant Secretary had been delegated authority to hold the hearing, receiving evidence, and hearing the arguments; however, the Secretary made the decision.
    • Crt: If the one who determines the facts which underlie the order has not considered evidence or argument, it is manifest that the hearing has not been given.
  201. Nash v. Bowen (2nd Cir. 1989)
    • (Independence of ALJs)
    • HHS tried to streamline its admin adjudication process by implementing peer-reviews, decision quotas, and controlling the number of cases that overturn previous state-level determinations to decline award benefits. Bowen filed suit against HHS saying its efforts inhibited his ability to independent.
    • Crt: Quotas are not troublesome; however, controlling the number of determinations that are overturned inhibits an ALJ's independence.
  202. Withrow v. Larkin (SCOTUS 1975)
    • (Can an agency investigate, adjudicate, and enforce decisions?)(As long as the combination of functions does not pose an extreme risk of unfairness that is "intolerably high")
    • WI statute prohibits doctors from practicing without a license, which was decided by an examining board of practitioners.
    • Crt: There is a presumption of honesty in the system. There is a risk of bias, but it is ok as long as the risk of unfairness is not "intolerably high." ***Note that this is a state case. APA s554 allows this but is not in favor of this setup.
  203. Andrews v. Agricultural Labor Relations Board (Cal. 1981)
    • (bias can be found if a decision maker has an unalterably closed mind)
    • Decision maker worked in the labor management field his entire life before becoming an adjudicator. Andrews claims that the decision-maker's experience created the appearance of bias and that the decision proved bias.
    • Crt: Judge what is in the record, not the individual. If the decision maker looks to unsubstantial evidence without giving credit to substantial evidence, then you have bias.
  204. Cheney v. US Dist. Crt. of DC (SCOTUS 2004)
    • (Reasonability standard applies when deciding whether a justice is conflicted)
    • 28 USC 455(a) - "any justice... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
    • Scalia and Cheney went on a hunting trip together where there were a number of other people.
    • The Sierra Club, in appealing VP's decision against their interest, ask Scalia to recuse himself because the hunting trip demonstrated that Scalia could not be disinterested. Scalia admits that he is a friend and an admirer of Cheney. That being said, Scalia says he paid for a round trip ticket, did not cost the government any money, but merely observed a social courtesy by accepting a trip from a friend.
    • Sierra Club seeks a standard set at the appearance of impropriety. Scalia argues for a lower standard and recuses himself.
  205. Schweiker v. McClure (SCOTUS 1982)
    • (assumption of good will for private adjudicators)(Where you get paid isn't automatically disqualifying)
    • Denial of a medicare plan B claim by a carrier can be reviewed by successive levels of review, including review by employees of the provider. Someone' claims are denied and he decries the impartial nature of the decision makers, the high cost of erroneous deprivations, and ask that the adjudicators be declared incompetent. The constitutionality of the level of due process is questioned.
    • Crt: The risk of erroneous decisions were low. The Constitutional due process protections apply, but the minimal level of reviewability is met.
  206. Discovery considerations under APA
    • No inherent right to discovery
    • APA s556 gives ALJ's the ability to hold interrogatories, administer oaths, issue subpoenas, take depositions when the ends of justice would be served, etc
  207. Showing inappropriate ex parte communication
    • language was too similar
    • unalterably closed mind
  208. Professional Air Traffic Controllers Organization v FLRA (DC Cir. 1982)
    • Reagan issues an executive order to force public air traffic controllers to return to work from their strike. The disobey and Reagan orders them all fired, arguing that public employees do not have the right to strike. Another executive order was issued banning their rehiring. There is a discussion between the ALJ and an authoritative politician.
    • Crt: The communications were not a problem, but the appearance was bad, They scold the ALJ, but does not condemn the ex parte communication. This falls short of corrupt tampering with process -  nobody benefited.
  209. INS v v. Chadha (SCOTUS 1983) (Formalists win) (Presentment & Bicameral Clauses)
    • INS moved to deport Chadha and an Immigration Judge suspended his deportation. The Attorney General, per statute, submitted to the House of Representatives allowing the House the possibility of vetoing the suspension. Chadha claims the House review was unconstitutional because it was based on a resolution passed by only one camera of Congress and without being presented to the President.
    • Crt: The Presentment Clause (Art. 1, Sec. 7, cl. 3 allowed POTUS to veto new legislation presented to him, and all legislation must be placed before him.
    • Further, the Bicameral Clauses (Art. 1, Sec.s 1, 7) denies Congress the ability to act unicamerally unless one of the explicit Constitutional provisions applied.
  210. Mistretta v. US (SCOTUS 1989) (Functionalism wins)
    • Mistretta challenges the Constitutionality of the Sentencing Guidelines. Sentencing Commission was comprised of an executive function being carried out by members of the Judiciary.
    • Crt: The sentencing guidelines were created independent of the influence of the executive branch, so there is no undue influence of the executive. Functionalism wins.
  211. CFTC v. Schor (SCOTUS 1986)(Functionalism wins)
    • CFTC decides, upon remand from art III court, that Schor was not a victim of fraud and thereby could not claim forgiveness from a debt he owed and did not disclose. Schor made the claim that it was an unconstitutional delegation of power that violated the separation of powers principal.
    • Crt: “If Congress handled a phalanx of non-Article III tribunals equipped to handle the entire business of the Art. III courts withouth Art. III supervision or control and without evidence of valid and spceific legislative necessities, the fact that the parties had the election to proceed in their forum of choice would necessarily save the scheme from constitutional attack.
  212. Two schools of thought for separation of powers cases (and their lead cases)
    • Functionalism (Mistretta)
    • Formalism (Chadha)
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